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Being held in custody without charge is against the law in Australia except under very specific circumstances.

But controversial laws that have been in place for almost a decade allow police to arrest a person under what is known as a ‘preventative detention order’, and hold them in custody for up to two weeks without any charges being laid.

In addition to this, those held under an order are not permitted to be identified in the media and the police are not required to publicly reveal details about the reasons behind their arrest, even if they are later released.

The orders allow police to arrest suspects without charge to prevent an imminent terrorist attack from occurring, or to preserve evidence in the immediate aftermath of a terrorist attack.

But despite the seriousness of these orders, it has taken authorities in NSW nearly a decade to standardise the operating procedures surrounding their use.

Operating procedures clarified a decade later

In a review of the police use of preventative detention orders between 2011 and 2013, released late last year, the NSW Ombudsman recommended the finalisation and review of the operating procedures for the orders.

According to the report, the “lack of a consistent and finalised set of procedures” could lead to the requirements for the use of the orders not being met.

The operating procedures for preventative detention orders have now been reviewed and standardised for NSW Police, Corrective Services and Juvenile Justice following the release of the Ombudsman’s report in December.

How widely used are these orders?

Three people were arrested and detained under preventative detention orders in September last year during highly publicised anti-terrorism raids in Sydney, before their use was clarified and standardised.

The three men, who can’t be identified due to an indefinite suppression order that prevents reporting about preventative detention orders, were released after 48 hours and no charges were laid against them.

In spite of the fact that the terms of a preventative detention order stipulate that people should be treated humanely, one man was reportedly assaulted during his arrest and sustained severe injuries that required hospital treatment before he could be taken into custody.

The men’s phone conversations with their criminal defence lawyer were also reportedly monitored, which is in line with the terms stated in preventative detention orders, but neither the men nor their lawyer were informed that this was taking place until the second phone conversation.

It must be said, however, that the lawyer concerned really should have known the law well-enough to have advised his clients at the start of their first conversation that such orders allow for the recording of lawyer/client communications.

It is alleged that no evidence was presented to form any basis for the men being in question, and they were released without being charged.

This lack of any charge resulting from the detention would indicate that the evidence against them was insufficient for police to take further action, which would also lead to questions as to whether their detention could possibly have been justified, or whether it was speculative.

They are reportedly seeking options for legal action.

Concerns with preventative detention orders

Preventative detention orders are rarely used but the lack of clarity and potential for human rights violations that accompany their use has left them open to widespread criticism amongst lawyers and civil rights organisations.

Over the years there have been a number of reports and requests made to parliament to have them abolished amid concerns that the powers could be open to misuse and abuse and lead to people being unfairly targeted.

Former independent national security legislatifon monitor Bret Walker, SC, has been a much-published critic of preventative detention orders, calling them a waste of time and more trouble than they are worth.

The main basis for his criticism is the fact that it is unlawful to question a person while they are being held in detention, therefore they serve no purpose when it comes to actually preventing or charging a person with an offence.

Mr Walker has also pointed out that the number of Australian deaths from terrorism is significantly lower than from other criminal activities and accidents, and that if we are going to have preventative detention orders for terrorism-related activities, then it would be justified to have them as an option for other offences like domestic violence or even drink driving.

Most people would likely consider orders in these cases to be unreasonable, but when it comes to terrorism, the opposite would seem to be the case.

Other critics have pointed out that many other countries with a higher terrorism threat than Australia don’t have provisions for preventative detention orders within their legislation, and have no plans to implement them due to concerns about the protection of civil liberties.

The laws governing preventative detention orders are due to expire next year, but the government has indicated that it is likely the laws will remain in place until at least 2025.

Those being held under preventative detention orders have the right to contact their families, and contact a lawyer.

If someone you know might be the subject of such an order, there are a number of specialist criminal lawyers in Sydney that will be sure to advise them properly – including forewarning them that their conversations will be monitored – and thereby best protect their rights.